Overview of tax law decisions of the Swiss Federal Supreme Court published between November 14 - 20, 2022:
- Judgment of 2 November 2022 (2C_101/2022): Administrative assistance DTA CH-USA; The question in dispute is whether Art. 20 para. 3 StAhiG is applicable in the context of administrative assistance proceedings, or more precisely, whether the FTA, pursuant to this provision, does not first have to obtain the consent of the Federal Office of Justice for the transmission of the information. U.S. administrative assistance requests filed before September 20, 2019 - such as the present request - are governed by aArt. 26 DBA CH-USA. The complainants argue that aArt. 26 DBA CH-USA has been violated in two respects. First, they claim that the use of the information to prosecute criminal tax offenses is not permitted. This is wrong. The information transmitted in application of aArt. 26 DBA CH-USA can be used to prosecute any criminal offense, provided that it constitutes tax fraud. In the present case, the established facts show that a domiciliary company was the holder of a CH bank account. Some of the beneficial owners of this account were US taxpayers who placed orders directly in this account. The account also contained US securities. However, the bank had not submitted either Form W-9 or Form 1066 for U.S. withholding tax, and the U.S. Form W-8BEN had been issued in the name of the company and not in the name of the beneficial owners. The first allegation is thus rejected. The question of which authority in the USA is the relevant authority within the meaning of aArt. 26 DBA CH-USA is a question of US procedural law and is not relevant for the application of aArt. 26 DBA CH-USA is not relevant. The second allegation is therefore also unfounded. Finally, the complainants also allege a violation of Art. 20 para. 3 DTA CH. This provision was created to regulate the procedure if the requesting state wishes to use the information contained for purposes other than criminal tax purposes. However, this is not relevant in the present case, since aArt. 26 DTA CH-USA permits the forwarding of information to a prosecuting authority from the outset. Dismissal of the appeal of A. and B.
- Judgment of 12 October 2022 (2C_824/2021, 2C_825/2021): Direct federal tax and state and municipal taxes 2016 (Appenzell Ausserrhoden); the complainant A. AG and Anstalt D. were held by the same foundation and are accordingly related to each other like sister companies. It was disputed whether the license payment of A. AG to Anstalt D. stood up to the third-party comparison. The lower court rightly considered the low margin of A. AG as an indication that no comparable license fees would have been paid to an independent third party. Dismissal of the taxpayer's appeal.
Decisions are listed chronologically by publication date.
